In the Matter of the Estate of HENRY S. BURTON, Deceased

[No. 14954. In Bank. March 12, 1892.] In the Matter of the Estate of HENRY S. BURTON, Deceased. Appeal — Dismissal — Failure to File Transcript — Settlement of Bill of Exceptions. — Pending the settlement of a bill of exceptions before the trial judge, an appeal will not be dismissed on account of the failure of the appellant to file the transcript. Motion to dismiss an appeal from an order of the Superior Court of San Diego County allowing an attorney’s fee in a probate proceeding. The facts are stated in the opinion of the court. Wellborn, Parker & Stevens, for Appellant. Works, Gibson & Titus, for Eespondents. [MAJORITY — The Court.] The Court. This is an appeal from an order of the superior court of San Diego County allowing an attorney’s fee to J. S. Callen, attorney for the absent heirs of said estate. Eespondents move to dismiss the appeal upon the clerk’s certificate that no transcript has been certified, and no bill of exceptions or statement of the case has been settled. Notice of appeal was filed and served March 2, 1891, and an undertaking on appeal in due form was also filed on said day. Under rule 2 of this court, the appellant has forty days after the appeal is perfected, and the bill of exceptions and statement (if there be any) are settled, to file the transcript. Since appellant perfected her appeal, it appears she has been endeavoring in good faith to secure a settlement of the bill of exceptions; and upon the twelfth day of March, 1892, this court issued a writ of mandate, etc., to the judge of the superior court of San Diego County, requiring him to settle a bill of exceptions upon the appeal in this case. For these reasons the motion to dismiss will be denied. (McGrath v. Hyde, 71 Cal. 454.)